Executive Summary: Key Legal and Evidentiary Issues

• Judicial review of the Autorité des marchés publics’ refusal to authorize a company for public contracts due to integrity concerns under Quebec’s public contracts law.

• Assessment of whether the AMP’s decision to deny corrective measures was reasonable and procedurally fair.

• Examination of the procedural fairness owed to companies facing exclusion from public contracting, including advance notice and justification requirements.

• Consideration of the legal standards for imposing and communicating corrective measures under the Loi sur les contrats des organismes publics.

• Evaluation of the proportionality and adequacy of the AMP’s process in handling integrity-related exclusions.

• Determination of whether the AMP’s practices align with established jurisprudence and statutory obligations.

Facts and outcome of the case

Background and facts

The case involves the Autorité des marchés publics (AMP), a regulatory authority in Quebec, and Excavation National inc., a private company seeking authorization to contract or subcontract with public bodies. The AMP denied this authorization on the grounds that Excavation National inc. did not meet the integrity requirements set out in the Loi sur les contrats des organismes publics (LCOP). As a result, the company was listed on the Registre des entreprises non admissibles aux contrats publics, effectively barring it from public contracts.

Excavation National inc. challenged the AMP’s decision by filing for judicial review in the Superior Court. The company argued that the AMP’s refusal to consider any corrective measures and its failure to provide adequate procedural fairness violated its rights under the applicable statutes.

Superior court decision

The Superior Court found that while the AMP’s determination regarding the company’s lack of integrity was reasonable, the refusal to consider corrective measures and the lack of advance notice about this refusal were not. The court partially granted the judicial review, annulled the company’s registration on the ineligible list, and ordered the AMP to conduct an individualized review of possible corrective measures. The AMP was also directed to provide a new notice to Excavation National inc. that clearly explained any future refusal to impose corrective measures.

Appeal and outcome

The AMP sought permission to appeal the Superior Court’s decision, arguing that the court had applied the wrong legal framework and misunderstood the procedural requirements. The court of appeal granted the AMP permission to appeal, recognizing that the case raised important questions about the procedural obligations of the AMP and the standards for excluding companies from public contracts.

At this procedural stage, the AMP succeeded in obtaining leave to appeal, but the merits of the appeal have not yet been decided. No damages were awarded, and the allocation of legal costs will follow the outcome of the full appeal. The case continues to have significant implications for the standards of procedural fairness and the regulatory framework governing public contracts in Quebec.